Chronicle of a Death Foretold: The Future of U.S. Human Rights Litigation Post-Kiobel
For thirty years, the Alien Tort Statute (ATS) has provided U.S. courts with civil jurisdiction over human rights abuses committed abroad and a small group of victims a modest measure of justice. The Supreme Court’s April 2013 decision to limit the extraterritorial reach of the ATS in Kiobel v. Royal Dutch Petroleum prompted declarations from experts that human rights litigation in the United States is dead. This view overstates the value of ATS litigation to human rights victims and ignores the availability of other legal strategies.
This Article explores the implications of Kiobel for the interests of those most affected by human rights violations-its victims-and identifies strategies for how advocates can best use existing legal remedies in the United States to vindicate victims’ rights. First, the Article defines a metric to evaluate the significance of U.S. legal strategies from a victim-centered perspective. The metric is based on international standards related to victims’ rights: the rights to truth, justice, and reparations.
Second, the Article catalogues the multiple legal strategies available in the United States to hold perpetrators accountable for human rights abuses committed abroad. Even after the Supreme Court’s holding in Kiobel, the United States remains the only country in the world where a nonnational victim can bring a civil action against a nonnational perpetrator for human rights abuses committed on foreign soil. U.S. courts also have extraterritorial jurisdiction over international crimes, such as genocide, war crimes, torture, and the recruitment of child soldiers. Under crime victims’ rights legislation, the foreign victims of these crimes have participatory rights in criminal proceedings. U.S. immigration authorities have also denaturalized and deported hundreds of perpetrators of human rights abuses who were discovered residing in the United States in violation of immigration laws.
Third, the Article looks beyond the mere existence of these formal opportunities to explore how available legal mechanisms can advance the rights of victims. The Article uses a victim-centered metric to dissect the myriad vague and unproven claims about the objectives of human rights litigation and identify concrete opportunities to advance victims’ rights to truth, justice, and reparations through legal advocacy in the United States.